The scope of the Taiwan Policy Act

By Frank Chiang 江永芳

On Aug. 1, the US House of Representatives Foreign Affairs Committee unanimously passed a bill entitled the Taiwan Policy Act. Although the fate of the bill in the House and the US Senate is uncertain, the fact that it passed the committee by unanimous votes reflects the sentiment of the committee members.

In 1979, the US Congress enacted the Taiwan Relations Act. When then-US president Jimmy Carter’s administration withdrew recognition of the Republic of China (ROC) as the representative government of China in December 1979, the US also terminated the US-China (ROC) Mutual Defense Treaty.

These acts terminated the international mechanism for the US to protect Taiwan in the event of aggression by the People’s Republic of China. For the protection of the people of Taiwan and the security of the US in the Western Pacific, the US took an unprecedented measure in international relations: employing a domestic law to implement the foreign policy, the US Congress enacted Taiwan Relations Act.

Since then, every US administration has maintained that their policy toward Taiwan was based on the “one China” policy and the Taiwan Relations Act.

The Taiwan Relations Act is an unusual law. In the US, the executive conducts foreign affairs and makes foreign policy. The Taiwan Relations Act is unusual in that the US Congress set forth foreign policy guidelines in the act for the executive to implement.

In the US, laws enacted by Congress pursuant to the US constitution are supreme laws of the land. A government policy, such as policy expressed in a joint communique, cannot violate the law and its mandate.

Since the enactment of the act, many US administrations have adopted some special policies toward Taiwan, which may or may not be friendly to Taiwan, including then-US president Ronald Reagan’s Third Communique of 1982, former US president Bill Clinton’s policy of “no Taiwan independence” and former US president George W. Bush’s policy of “no referendum for Taiwan.”

There are two reasons for the committee to show its concern by passing such a bill at this time. One reason is that US administrations for the past two decades have not followed the mandate of the Taiwan Relations Act.

For instance, notwithstanding that the act mandates that “the United States will make available to Taiwan such defense articles and defense services in such quantity as may be necessary to enable Taiwan to maintain a sufficient self-defense capabilities” (Sec. 3), the Third Joint Communique issued by the Reagan administration reduced the level of US commitment under the Taiwan Relations Act by providing that “arms sale to Taiwan will not exceed, either in quantitative or qualitative terms, the level of those supplied in recent years.”

The new Taiwan Policy Act says: “The language contained in the [Third] Joint Communique shall not, to any degree, diminish the responsibility of the US, as legislatively mandated in the Taiwan Relations Act.”

The other reason for its concern is that since President Ma Ying-jeou (馬英九) took office, his policy has been coddling, if not kowtowing to, China.

The cross-strait Economic Cooperation Framework Agreement (ECFA) has pushed Taiwan closer to China. What makes the situation worse is the indifference or the silence of Taiwanese in the face of the silent invasion — a flood of Chinese visitors and money — of Taiwan.